State ex rel. Donlan v. Board of Commissioners

MR. JUSTICE SANNER delivered the opinion of the court. Mandamus by Edward Donlan, the relator and appellant, to compel the board of county commissioners of Sanders county to issue to him county warrants to the amount of $9,791.42 in payment for a bridge. In his amended affidavit for the writ the relator averred: That prior to March 10, 1913, he was the sole OAvner and entitled to the possession of a certain wagon bridge across the Flathead river near Perma, in the county of Sanders, which bridge ‘ ‘ as finally constructed, united certain divided portions of a public highAvay”; that for sometime prior to March 10, 1913, negotiations had been carried on between him and the board looking to the purchase of said bridge, which negotiations finally, and on March 10,1913, culminated in a contract whereby the board agreed to purchase said bridge from him “and pay therefor such a sum of money, not exceeding $10,000, as should be determined to be the fair cash valuation thereof, which fair cash valuation was to be fixed and determined by seven commissioners, all disinterested persons, three of which commissioners were to be appointed by respondents, three by said Edward Donlan, and one by the judge of the district court of the district in which Sanders county is situated, and which fair cash valuation, when determined by said commissioners, was to be reported under oath to said respondents”; that such commissioners were appointed; that they met and proceeded to investigate and determine the fair cash valuation of the bridge, and on July -, 1913, made their unanimous report under oath to the board declaring the value of the bridge to be [522] $9,791.42; that thereafter, on July 10, 1913, the relator made written demand upon the board for the issuance and delivery to him of county warrants in said sum; that the board on the same day, “after considering the aforesaid demand, by action taken in meeting duly assembled, declined and refused to proceed further in the matter of the purchase of and payment for said Perma bridge, and did further decline and refuse to take any further action of any kind in connection with the matter, assigning as their sole reason therefor an existing doubt as to their authority to purchase said bridge”; that ever since March 10, 1913, the said bridge “has been accepted for use and used by respondents as a part of the aforesaid public highway, and has been at all said times used by the traveling public of Sanders county, as and for a portion of a public highway within said county”; that at all times since August-, 1913, there has been in the possession of the county clerk of Sanders county, subject to delivery to the board upon its application therefor, “a conveyance from Edward Donlan and wife unto the county of Sanders, of all of the right, title and interest of the grantors in and to said Perma bridge.” Other allegations, largely of a legal character, are appended to complete the affidavit. The respondents demurred on sixteen specified grounds, the sum of which is to challenge the sufficiency of the affidavit to justify the writ. The demurrer was sustained, and the relator, electing to stand upon his pleading, has appealed. We think the ruling was correct. Mmdamus lies only to [1] compel the performance of a clear legal duty (Revised Codes, see. 7214), and the amended affidavit — to say the utmost possible for it — does not show a clear duty on the part of the board to issue the warrants demanded. We subjoin some of the reasons why this is so, without adverting to others which may suggest themselves. The relator alleges that when the [2, 3] contract of purchase was made, he was the owner of the bridge in question, having become such owner by constructing it so as to connect portions of a public highway separated by the Flathead river. This averment is self-destructive, potentially at least, for it means that he entered upon an existing [523] public highway, and, for reasons not disclosed, he affixed thereto a structure which became a part thereof. (State ex rel. Foster v. Ritch, 49 Mont. 155, 140 Pac. 731; Revised Codes, secs. 4425, 4427.) When this occurred does not appear, but from its occurrence — unexplained—certain inferences are permissible, among them these: That he acted as a mere volunteer intending that the bridge erected by him should be a part of the highway and belong to the public as such (Revised Codes, secs. 1337, 4572; Laws 1913, p. 139, sec. 3) ; or that he acted under some arrangement by which he might be compensated for the labor and materials furnished. In neither of these events could he be the owner of the structure as such or restrain the public in the free use thereof; nor in either of these events could the county commissioners legally contract to purchase it, because to all intents and purposes it belonged to the public. Assuming, however, that there were circumstances not disclosed by the affidavit, which suffice to avoid the conclusion above stated and permit us to say that the bridge was the property of the relator, what kind of property was it? A bridge is of [4] necessity affixed to the realty and is real estate — as much real estate as the remainder of the highway of which it is a part. It is not claimed that the bridge in question was a toll-bridge, and our Code contaiondjig provision touching the purchase of a private bridge as such; but it did and does contain a provision authorizing the county commissioners to purchase real estate for the use of the county. For such a purchase a method is prescribed by statute (Revised Codes, see. 2894, subd. 8), and this method was not pursued in the transaction at bar. This being true, the proceedings were without legal sanction, and it was not the duty of the board to carry them further. The Judgment is affirmed. Affirmed. Mr. Chief Justice Brantlv concurs. Mr. Justice Holloway, being absent, takes no part in the foregoing decision.